“it more concerns the Turk”*? - New reference to ECJ over Kurdish TV-Channel

Posted on February 25, 2010 | Filed Under digital content

On 24 February 2010 the German Federal Administrative Court decided to refer questions concerning the Audiovisual Media Services Directive (AVMSD) to the European Court of Justice for a preliminary ruling. The German Federal Ministry of the Interior had banned the activities of two companies under Danish law, which provide - on the basis of a Danish licence - a TV programme mainly in the Kurdish language. The programme is distributed via satellite across Europe and to Turkey and the Middle East. The injunction was based on the German law on associations, and the reasons for the ban included that the broadcasting of the TV programme was directed against the idea of international understanding. The Ministry also stated that the station supported the armed struggle of the Kurdish Workers Party against the Turkish state. 

The Federal Administrative Court came to the conclusion that the injunction would be justified under national law. However, it is questionable whether the ban would be precluded by the AVMSD, which in its Article 3b provides that “Member States shall ensure … that audiovisual media services provided by media service providers under their jurisdiction o not contain any incitement to hatred based on race, sex, religion or nationality.”

Compliance with these Community [now: Union] minimum standards is enforced by the transmitting State (in this case, Denmark). The receiving State (Germany) must not exercise “secondary control” (see ECJ 9 July 1997, C-34/95, C-35/95, C-36/95, Konsumentombusmannen ao, para 34: “Thus the Directive does not in principle preclude application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.)

The German Federal Administrative Court considered that the German Ministry of the Interior might have exercised such secondary control of a TV programme that was transmitted without any objections by the competent authorities of Denmark as the transmitting state.

As the decision of the Federal Administrative Court is not published yet, this blogpost is based on the Court’s press release (here, in German). I am pretty sure that the Court’s questions do not yet in fact concern the (revised) AVMSD, but are based still on the “Television Without Frontiers”-version of the directive. Even so, the relevant principles also apply to the new AVMSD. [update 26 May 2010: the case is C-245/10 Roj TV]

*) Shakespeare, Othello, Act I Scene 3

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This year’s list of the “top 3″ pending cases at the ECJ

Posted on February 18, 2010 | Filed Under communication technologies

At the beginning of last year, I provided an outlook on the telecoms and broadcasting cases pending at the ECJ which I thought were the most important and which were likely to be deicded in 2009. Taking a quick look back at this post, I can safely say that all four cases - C-202/07 P France Télécom v. Commission, C-424/07 Commission v. Germany, C-301/06 Ireland v. Council and European Parliament, and C-222/07 UTECA - were decided (and in the two cases where I hinted at the likely outcome I was right); you find more on the cases going to our list of decided cases.

This year I wanted to offer my selection of “top cases” together with some other news from the Court - but week by week went by without any important telecoms or broadcasting case scheduled. As of today, finally, I can at least point to two upcoming judgments: on 11 March 2010 the competition case C-522/08 Telekomunikacja Polska v. UKE, concerning bundled offers, will be decided and on 18 March 2010 the case about mandatory conciliation attempts for telecoms customers (C-317 /08, C-318/08, C-319/08 and C-320/08, Alassini, Califano, Iacono, Multiservice) is due.

Not really covered by this blog, but of overriding interest for anyone using the internet, of course is the IP (trademark infringement) case of C-236/08, C-237/08, C-238/08 Google France, where the Grand Chamber of the ECJ will deliver judgment on 23 March 2010.

And coming to my list of the top three cases where I expect ECJ decisions this year*), I have to admit that it was hard even to come up with three fairly interesting cases:

At number three, a state aid case from the General Court (formerly known as the Court of First Instance) - after six long years, a decision concerning the recapitalisation of France Télécom should be imminent: T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission [update: decided on 21 May 2010; see this post].

At number two, the validity of the roaming regulation (or more precisely, its article 4) is to be decided in the case C-58/08 Vodafone. In his opinion, advocate general Poaires Maduro seemed to suggest that the validity might depend on the period of time that the price control regime is applied (I wrote about that in more detail [in German]  here at e-comm). I doubt that the Court will rely too much on this point, as it might be especially tricky considering that the time limit of the regulation has been extended recently [update: judgment on 8 June 2010, see this post].

And at number one, the Deutsche Telekom Magenta margin squeeze case C-280/08 P Deutsche Telekom AG should finally end more than a decade of arguing about the relationship between sector specific regulation and general competition law. And while you never know about any “technical” issues or formalities, in substance the CFI’s judgment seems sound to me and I would be surprised if the ECJ would turn it over (on the merits) [update: advocate general’s opinion on 22 April 2010, see this post].

As in 2009, interesting broadcasting cases are in even shorter supply, and I doubt that C-403/08 Football Association Premier League and Others will come up for decision already this year. Maybe at least the challenges to the British and Belgian lists of events of ‘major importance to society’ could be decided in 2010: T-385/07 FIFA v. Commission,  T-55/08 UEFA v. Commission and T-68/08 FIFA v. Commission.

—

*) I have to stress that this is a subjective estimate, based on experience, but not on inside information from the ECJ.

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